Perkins v. Porter et al

Filing 18

ORDER DISMISSING First Amended Complaint Without Leave to Amend signed by Magistrate Judge Michael J. Seng on 5/30/2017. CASE CLOSED. (Jessen, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CARL PERKINS, Plaintiff, 11 ORDER DISMISSING FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND v. 12 13 Case No. 1:17-cv-0579-MJS (PC) M. PORTER, et al., 14 (ECF No. 17) Defendants. CLERK TO CLOSE CASE 15 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 17 rights action pursuant to 42 U.S.C. § 1983. He has consented to magistrate judge 18 jurisdiction. Plaintiff‟s First Amended Complaint is before the Court for screening. 19 I. Screening Requirement 20 The in forma pauperis statute provides, “Notwithstanding any filing fee, or any 21 portion thereof, that may have been paid, the court shall dismiss the case at any time if 22 the court determines that . . . the action or appeal . . . fails to state a claim upon which 23 relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 24 II. Pleading Standard 25 Section 1983 “provides a cause of action for the deprivation of any rights, 26 privileges, or immunities secured by the Constitution and laws of the United States.” 27 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). 28 Section 1983 is not itself a source of substantive rights, but merely provides a method 1 1 for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 2 393-94 (1989). 3 To state a claim under § 1983, a plaintiff must allege two essential elements: 4 (1) that a right secured by the Constitution or laws of the United States was violated and 5 (2) that the alleged violation was committed by a person acting under the color of state 6 law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 7 1243, 1245 (9th Cir. 1987). 8 A complaint must contain “a short and plain statement of the claim showing that 9 the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 10 are not required, but “[t]hreadbare recitals of the elements of a cause of action, 11 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 13 Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to 14 relief that is plausible on its face.” Id. Facial plausibility demands more than the mere 15 possibility that a defendant committed misconduct and, while factual allegations are 16 accepted as true, legal conclusions are not. Id. at 677-78. 17 III. Plaintiff’s Allegations 18 At all times relevant to this action, Plaintiff was incarcerated at California City 19 Correctional Facility in California City, California. He names as Defendants Correctional 20 Officers (“CO”) Porter, Gomez, Askerson, Cortez, Walsh, and Maldonada. 21 Plaintiff‟s minimal allegations can be fairly summarized as follows: 22 On February 16, 2017, CO Gomez entered the B-Section pod with legal mail for 23 Plaintiff and motioned for Plaintiff to come to him. Plaintiff was on a collect call at the 24 time and motioned for CO Gomez to come to him instead. CO Gomez left without giving 25 Plaintiff his mail. Plaintiff received his mail the next day from another officer. 26 CO Gomez then asked CO Porter to “unleash the (hounds)” on Plaintiff. 27 Following this request, CO Porter left word for CO Askerson and CO Cortez to search 28 Plaintiff‟s cell. On February 18, 2017, these two Defendants searched the cell even 2 1 though they had just searched the cell the day before. CO Maldonada “let both Cortez 2 and Askerson run rogue….” 3 The sole allegation asserted against Walsh is that he or she screened out 4 Plaintiff‟s inmate grievance. 5 Plaintiff seeks damages. 6 IV. Discussion 7 “The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate 8 exhaust „such administrative remedies as are available‟ before bringing suit to challenge 9 prison conditions.” Ross v. Blake, 136 S. Ct. 1850, 1854-55 (June 6, 2016) (quoting 42 10 U.S.C. § 1997e(a)). However, “an inmate is required to exhaust those, but only those, 11 grievance procedures that are „capable of use‟ to obtain „some relief for the action 12 complained of.‟” Ross, at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). 13 Failure to exhaust is “an affirmative defense the defendant must plead and prove.” 14 Jones v. Bock, 549 U.S. 199, 204 (2007). 15 The Supreme Court has identified only “three kinds of circumstances in which an 16 administrative remedy, although officially on the books, is not capable of use to obtain 17 relief.” Ross, at 1859. These circumstances are as follows: (1) the “administrative 18 procedure ... operates as a simple dead end – with officers unable or consistently 19 unwilling to provide any relief to aggrieved inmates;” (2) the “administrative scheme...[is] 20 so opaque that it becomes, practically speaking, incapable of use ... so that no ordinary 21 prisoner can make sense of what it demands;” and (3) “prison administrators thwart 22 inmates from taking advantage of a grievance process through machination, 23 misrepresentation, or intimidation.” Id. at 1859-60 (citations omitted). Other than these 24 circumstances demonstrating the unavailability of an administrative remedy, the 25 mandatory language of 42 U.S.C. § 1997e(a) “foreclose[es] judicial discretion,” which 26 “means a court may not excuse a failure to exhaust, even to take [special] 27 circumstances into account.” Ross, 136 S. Ct. at 1856-57. 28 In the Ninth Circuit, dismissal of a prisoner civil rights action for failure to exhaust 3 1 administrative remedies must generally be decided pursuant to a motion for summary 2 judgment under Rule 56, Federal Rules of Civil Procedure. Albino v. Baca, 747 F.3d 3 1162 (9th Cir. 2014) (en banc). The only exception is “[i]n the rare event that a failure to 4 exhaust is clear on the face of the complaint.” Id. at 1166 (authorizing defendant to 5 move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6)); see also Jones, 549 U.S. at 6 215 (exhaustion is not a pleading requirement but an affirmative defense that, if 7 apparent on the face of the complaint, may support dismissal); Wyatt v. Terhune, 315 8 F.3d 1108, 1120 (9th Cir. 2003) (“A prisoner's concession to nonexhaustion is a valid 9 ground for dismissal, so long as no exception to exhaustion applies.”), overruled on 10 other grounds by Albino, supra, 747 F.3d at 1166; Vaden v. Summerhill, 449 F.3d 1047, 11 1051 (9th Cir. 2006) (“Because Vaden did not exhaust his administrative remedies prior 12 to sending his complaint to the district court, the district court must dismiss his suit 13 without prejudice.”) (citing Wyatt, 315 F.3d at 1120). 14 This case falls under the “rare event” contemplated by Albino when the failure to 15 exhaust is clear from the face of this complaint. Here, Plaintiff admits that he did not 16 exhaust his administrative remedies before initiating this case. When Plaintiff‟s original 17 pleading was dismissed with leave to amend for failure to exhaust, he was specifically 18 informed that he must assert specific facts to show that one of the three aforementioned 19 exceptions to the mandatory exhaustion requirement apply to this case. In his amended 20 pleading, Plaintiff claims only that his grievance “was screened out by CCI N. Walsh a 21 named party in this suit.” He provides no further details. 22 In the absence of any circumstances to show that the administrative procedure 23 was “a simple dead end,” or that the administrative scheme was overly opaque, or that 24 prison administrates thwarted Plaintiff from pursuing his appeal through “machination, 25 misrepresentation, or intimidation,” this action must be dismissed for failure to exhaust 26 administrative remedies. 27 V. Conclusion 28 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff‟s First Amended 4 1 Complaint is dismissed without leave to amend for failure to exhaust administrative 2 remedies. The Clerk of Court is directed to close this case. 3 4 5 IT IS SO ORDERED. Dated: May 30, 2017 /s/ 6 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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